Continuing Legal Education Written Materials REUNION 2016 CLASS IV The Second Amendment: A Biography 1.5 CLE Credits Lectured by Michael Waldman ’87 President, Brennan Center for Justice NYU School of Law Vanderbilt Hall 40 Washington Square South Saturday, April 9, 2016 11:15AM- 12:45PM CLE materials can be downloaded at: www.law.nyu.edu/alumni/reunion2016/clematerials seven The Road to Heller militant National Rifle Association combined with a forest’s A worth of law review articles built inexorable momentum to press the court to change its views of the Second Amendment. Key government agencies began to shift first. Republicans took con- trol of the U.S. Senate for the first time in twenty-four years in . Utah senator Orrin Hatch became chair of a key Judiciary Committee panel. He commissioned a study, “The Right to Keep and Bear Arms.” In a breathless tone it announced, “What the Subcommittee on the Constitution uncovered was clear—and long lost—proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.” The cryptologist discovering invisible writing on the back of the Declaration of Inde- pendence in the Disney movie National Treasure could not have said it better. A constitutional right to gun ownership, though, was still too far a reach, even for the doctrinal conservatives in Ronald Reagan’s Jus- tice Department. In part, “the individual rights claim on the Second Amendment was a New Right right,” notes Yale’s Reva Siegel, “at odds with judicial precedent and in tension with New Right complaints about 2P_Waldman_SecondAmendment_PB_yc.indd 117 3/4/15 4:50 PM 118 the second amendment judicial activism.” It would undo the work not of judges, but demo- cratically elected legislators. In addition, libertarian law professors and insurrectionist movie actors were only part of the conservative coalition. The Justice Department spoke for law enforcement, as well, and the national agencies (such as the FBI and Bureau of Alcohol, Tobacco and Firearms) and local police were united in their desire to crack down on gun violence. Attorney General Meese, fresh from the controversy and impact of his original intent speeches, commissioned a comprehensive strategy to map a drive for jurisprudential change in fifteen areas rang- ing from the “exclusionary rule” under the Fourth Amendment to public initiatives to strengthen private religious education. The Constitution in the Year 2000 was an audacious plan to rewrite constitutional doctrine. It did not include a strategy for the Second Amendment. But the NRA’s power to elect presidents (and the judges they ap- point) began to shift the organs of government, too. In (“especially for you, Mr. Gore”), gun activists strongly backed Governor George W. Bush of Texas. During the election, a new dispute over the meaning of the Second Amendment began to move through the courts. Timothy Emerson, a Texas doctor, was under a restraining order after allegedly threatening to kill his wife’s lover. Federal law barred him from own- ing guns. He was indicted for owning a Beretta pistol. He insisted his Second Amendment right had been violated. In a letter about the case, a Justice Department official confirmed its long-held view that “the Second Amendment does not extend an individual right to keep and bear arms.” NRA activists circulated it widely in West Virginia, Tennes- see, and Arkansas, states previously won by Democrats but lost by the Democratic vice president. In , newly installed Attorney General John Ashcroft announced a major policy pivot. The NRA’s head lobbyist read Ashcroft’s letter to the group at its convention in Kansas City: “The text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.” The next year, the Justice Department formally reversed its position of seven decades. A federal appeals court ruled against the Texas doctor, but made the noteworthy assertion that the 2P_Waldman_SecondAmendment_PB_yc.indd 118 3/4/15 4:50 PM The Road to Heller 119 Constitution confers a right to own a gun. Solicitor General Ted Olson, who had argued the Bush v. Gore case that secured the presidency, urged the Supreme Court to reject the doctor’s appeal. At the same time, the Justice Department argued that the Constitution “broadly protects the rights of individuals” to own firearms. The individual rights argument was starting to win in another forum: public opinion. Citizens were sharply divided on gun laws. By early , according to the Gallup poll, percent of Americans believed the Second Amendment “guaranteed the rights of Americans to own guns” outside the militia. In , according to a Gallup poll, percent of Americans favored banning handguns; that dropped to percent by and stood at percent in . The idea of a Second Amendment right began to become synonymous with opposition to gun control, with conservatism, even with support for the Republican Party. In , for example, The New York Times mentioned gun control times, and the Second Amendment only sixteen. By , overall mentions of the issue dropped, but the Second Amendment was mentioned fifty times. In the end, it was neither the NRA nor the Bush administration that pressed the Supreme Court to reverse course. A small group of libertar- ian lawyers believed other gun advocates too timid. They targeted a gun law passed by the local government in Washington, D.C., in , per- haps the nation’s strictest. It barred individuals from keeping a handgun at home and required trigger locks on other guns. Robert Levy was a technology entrepreneur who graduated law school at age fifty-three, then served as a clerk for two federal judges. A constitutional fellow at the idiosyncratic Cato Institute, Levy found appealing plaintiffs and bankrolled the litigation. By the time the case reached the high court, Levy and two colleagues represented Dick Heller, a security guard at the Thurgood Marshall Federal Judiciary Building who wanted to bring his work revolver home to his high-crime neighborhood. The NRA tried to sideswipe the effort, filing what Heller’s lawyers called “sham litigation” to cloud the case. Worried about an adverse court ruling, it even tried to persuade Congress to nullify the District’s law, which would have rendered the case moot. The D.C. Circuit Court of Appeals—the court 2P_Waldman_SecondAmendment_PB_yc.indd 119 3/4/15 4:50 PM 120 the second amendment where Justices Roberts, Scalia, and Ginsburg once served—struck down the gun law, to . All knew that the Supreme Court was poised to speak in a new voice on the Second Amendment. Sixty-six friend of the court briefs from scholars, lawmakers, and interest groups tumbled into the clerk’s office. Linguists wrote to explain the meaning of the preamble. Early Ameri- can historians explained the history of the amendment’s ratification. The NAACP Legal Defense Fund, the American Bar Association, organiza- tions against domestic violence, Jews for the Preservation of Firearms Ownership, and many others weighed in. Many expected the George W. Bush administration to speak for those who opposed the D.C. law. Instead, the brief filed by Solicitor General Paul Clement equivocated. Second Amendment rhetoric aside, the Department of Justice argued that the Appeals Court ruling would endanger bans on weapons such as machine guns. It endorsed a “reasonable” Second Amendment right, and said the Court of Appeals had not applied that analysis in strik- ing down the ban on handguns. Conservatives pounced. Vice President Dick Cheney filed his own far more adamant brief, with a majority of members of the House and Senate, backing Heller. At the argument before the justices, the surprise was the degree to which originalism had triumphed. There were few questions about current gun laws, or the toll of gun violence, or legislative history, or precedent: all the things prior courts relied on to make major decisions. Queries from the justices focused heavily on colonial, early American, even seventeenth-century British history. The smell of snuff could have pervaded the courtroom. Much history was fuzzy, at best. Justice An- thony Kennedy asked of the amendment, “It had nothing to do with the concerns of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” The District’s lawyer, former acting Solicitor General Walter Dellinger, explained that the debate over the amendment—all of which took place on the Eastern seaboard, far from grizzly danger— focused on militias and fighting government tyranny. Justice Stephen Breyer noted that guns kill or wound , to , Americans per 2P_Waldman_SecondAmendment_PB_yc.indd 120 3/4/15 4:50 PM The Road to Heller 121 year. Would it be unreasonable for a city with a high crime rate to ban handguns? “You want to say yes,” Scalia instructed Heller’s lawyer. He agreed. HELLER’S PUBLIC MEANING On the last day of the term in June —in the final opinion an- nounced before the presidential election—the Supreme Court issued its ruling. Five to four, the justices voted to strike down the capital’s gun law. Chief Justice Roberts, Anthony Kennedy, Clarence Thomas, and Samuel Alito joined Scalia’s opinion. Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer dissented. For the first time, the Court ruled that the Second Amendment recognizes an indi- vidual right to own a gun unrelated to militia service. Scalia wrote the opinion, a sure sign the Court would move aggressively to the right. Roberts had done something Rehnquist never would: he assigned Scalia the job of writing the big one.